The opinion of the court was delivered by: John Gleeson, United States District Judge
On August 20, 2009, a jury found defendant Arienne Irving guilty of five of the twelve counts charged in the indictment against her. Irving was convicted of conspiracy to obstruct justice (Count One), two counts of attempted witness tampering (Counts Three and Five, pertaining to David Clarke and Vijai Jaignarine, respectively), and importation and possession of eavesdropping equipment (Counts Twelve and Thirteen, respectively). The jury acquitted Irving of six additional witness tampering counts (Counts Two, Four, Seven, Eight and Nine, pertaining to Selwyn Vaughn, George Allison, Leslyn Camacho, Alicia Jagnarain and Farrah Singh, respectively) and of bribing Leslyn Camacho (Count Ten)*fn1 . Irving moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, or, in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33. On December 4, 2009, I granted the motion for a judgment of acquittal, with a promise that this opinion would follow.
Though the details of the evidence are important, and they are discussed below, the overview of the case is simply stated. Irving, an attorney, worked for her co-defendant, prominent criminal defense attorney Robert Simels. The charges in the case arose out of their representation of Roger "Shaheed" Khan in United States v. Shaheed Khan, 06-CR-255 (DLIVVP) ("Khan"). Khan, a citizen of Guyana with ties to high-ranking government officials in that country, was indicted on narcotics trafficking charges in April of 2006. He was arrested in June 2006 in Suriname and transported to the United States to face those charges before the Honorable Dora L. Irizarry. Simels first appeared as counsel for Khan in August of 2006. Slightly more than two years later, while the Khan case was still awaiting trial, Simels, Khan and Irving were arrested in this case and charged with conspiring to obstruct justice in the Khan case.
The evidence at trial showed that Simels, who is now 62 years old, was a gifted criminal defense lawyer. In exchange for the $1.4 million retainer Khan gave Simels, Khan got a lawyer who immersed himself completely in the case and did all the things top-flight lawyers are supposed to do. Simels's encyclopedic knowledge of every aspect of the Khan case was apparent from the evidence at trial. He made multiple visits to Guyana, where most of the events giving rise to the charges against Khan occurred and where much of Simels's investigative work needed to be done. Simels sought to learn every detail he could, not only about the prospective witnesses against Khan, but about anyone who knew those witnesses as well, as they could potentially become sources of impeachment material. Because the information net was cast so widely by Simels, his work was labor intensive and required both organizational skills and record-keeping assistance.
Unfortunately, another thing the evidence proved -- just as convincingly as the first -- was that Simels supplemented his arsenal of investigative and forensic skills with illegal tactics. The opportunity to do so in the Khan case presented itself in May of 2008 in the person of Selwyn Vaughn. In less than four months' time, Simels and Irving would be arrested in this case.
Simels believed that Vaughn was still a loyal member of Khan's Guyanese paramilitary organization, when in fact Vaughn was a paid informant working with the Drug Enforcement Administration ("DEA"). Believing incorrectly that Vaughn would assist his corrupt efforts to undermine the Khan case, Simels, among other things:
-- made it clear that he would pay money to ensure that David Clarke, the key witness against Khan, "suddenly just g[o]t amnesia";
-- regarded the neutralization of Clarke by cross-examination as but one option, another being the illegal neutralization of him by bribery or intimidation;
-- authorized Vaughn to use all violent means necessary to silence Clarke, except murdering Clarke's mother;
-- authorized Vaughn to use all violent means necessary, without limitation, to silence or obtain the cooperation of George Allison;
-- agreed to bribe Clarke's girlfriend, Leslyn Camacho, to induce her to give false testimony, and had the bribe money and a false affidavit waiting for her on the day he was arrested.
Irving began her employment with Simels in December 2006, several months after he was retained by Khan. She was 28 years old at the time. Irving was the last of a series of relatively inexperienced associates hired by Simels to assist him in his practice. The trial evidence shed enough light on her functions and salary to support the conclusion that she was more of a paralegal than a law associate. In any event, despite her close physical proximity to Simels in his small law offices, and despite her close working relationship with him on the Khan case, Irving was not present for the criminal interactions between Simels and Vaughn. Rather, the government sought to connect her to them through a handful of her actions during the relevant time period. Those actions are discussed in detail below. They support an inference that Irving was present at various times while Simels's criminal conduct was under way, and even that Irving's own actions assisted Simels's crimes. But the evidence fell considerably short of proving beyond a reasonable doubt that Irving had the knowledge and intent necessary to establish her participation in any of the attempted witness tampering offenses or in the conspiracy to tamper with witnesses.
Counts Twelve and Thirteen were unusual. They charged Irving with importing and possessing eavesdropping equipment Khan had owned in Guyana. Khan had used it in Guyana to intercept the telephone conversations of others. The recorded conversations were stored on a laptop Khan had previously provided to Simels. When Simels told the Khan prosecutors of his intention to offer the recorded conversations, they naturally wanted to inspect the original recordings, and they inquired about the equipment that was used to make them. Simels and Irving thus undertook to locate the equipment in Guyana and have it sent to them in New York so it would be available in the event they needed it to offer the recordings in the Khan case. The government did not allege in this case that the equipment was obtained for any purpose other than to ensure that Khan could successfully offer at trial in the Khan case the tape recordings he intercepted in Guyana. Nevertheless, the government charged Simels and Irving with unlawfully importing and possessing the equipment that the prosecutors in Khan, in effect, caused them to import and possess. The evidence against Irving at trial was insufficient to prove beyond a reasonable doubt all of the elements of these offenses.
Finally, Rule 29(d) requires me to determine whether a motion for a new trial should be granted if the judgment of acquittal explained here is later vacated or reversed. I conclude that the alternative relief of a new trial is appropriate in this case, and conditionally grant Irving's Rule 33 motion.
As mentioned above, Irving began her employment as an associate at the Robert Simels Law Firm in December 2006. The law firm's offices were housed in a converted three-bedroom apartment in the Upper East Side of Manhattan. At the time of Irving's arrest, two attorneys -- Simels and Irving -- worked at the office in addition to Simels's secretary Juanita Singh. Simels's and Irving's offices were next to each other.
Selwyn Vaughn, who is also known as "Fineman," approached Simels in the spring of 2008 and offered his assistance in preparing for Khan's trial. Vaughn recorded five meetings with Simels between May 13, 2008 and September 10, 2008. The first occurred in the conference room in Simels's offices and the rest were held in Simels's personal office. Irving attended the first meeting and portions of the third. In addition to those personal contacts with Vaughn, during the same period, Irving communicated with him electronically and telephonically.
There is an important and fairly distinctive aspect of the government's case against Irving that is obscured by the chronological description of the evidence set forth below.
The case did not turn on witness credibility in any meaningful way. Neither of the two witnesses to the events giving rise to the charges -- Vaughn and Simels himself -- implicated Irving in Simels's crimes. Nor did the tape recordings of the meetings between Vaughn and Simels (and, at times, Irving) establish her participation in those crimes. Indeed, after hearing Vaughn's direct examination and all of the tapes, I asked the government if it had more evidence against Irving. Tr. 496. The following day, as the government's case was winding down, the obvious dearth of evidence against Irving caused me to ask the government again whether there would be more evidence against her. Tr. 804-05. The government's response to my inquiry accurately stated that there would be computer records and documents offered toward the end of its case from which it would argue that Irving knowingly, and with the requisite intent to obstruct the Khan case, assisted Simels and Khan in their crimes.
Thus, there is no danger here of intruding on a jury's credibility determinations. And though there are a few instances in which the government contends that Vaughn's recorded conversations support an inference of knowing participation by Irving, essentially, the question at hand is whether the documentary evidence, particularly Irving's memoranda to the Khan file after her visits with Khan in jail,*fn2 supports the jury's verdicts.
A. The November 8, 2007 Memorandum (Irving's Visit with Khan)
Irving met with Khan at the MCC on November 8, 2007. As was her practice, she drafted a memorandum to the file about the meeting. The memorandum made clear that the meeting concerned telephone conversations intercepted by Khan in Guyana, and in particular the equipment he used for that purpose. Khan's defense team was trying to obtain information about the cost of the equipment, and how it was sold to the Guyanese government by the manufacturer, Smith/Myers.*fn3 In the memorandum, Irving wrote, inter alia, as follows:
* [Khan] said Nancy*fn4 is definitely lying about the amount paid on the new equipment. He said that Nancy wanted $500,000 for the new equipment. He worked out a deal saying he would pay $250,000 and then when the equipment was delivered he would give Nancy the old equipment, which she could sell for the balance.
* I showed [Khan] the info from the laptop, but he said, I need to go on the desktop and click on the Smith Meyers folder and then a screen with a grid will come up. He said in the menus in that screen I should find something that says target list, he said I need to print out the target list and then he will be able to tell us which calls are relevant.
Gov't Ex. 532. When the memorandum was seized, the words "Intercept Equip" had been handwritten on the top of the document.
B. The March 19, 2008 Memorandum (Irving's Visit with Khan)
Irving met with Khan again on March 19, 2008. In her memorandum describing the meeting, Irving wrote in the ninth bullet point: "[Khan] says we need to find Leslyn Camacho to get to David Clarke." Gov't Ex. 807.David Clarke was a witness who was preparing to testify against Khan in his trial. Camacho was Clarke's girlfriend. Two bullet points later, Irving wrote: "[Khan] said [Simels] should call David Narine's attorney and see if David will talk to us."*fn5 Id.
C. The May 13, 2008 Meeting (Vaughn First Visits Simels and Irving)
Khan was the leader of a paramilitary group in Guyana known as the Phantom Squad.*fn6 Several of its members were former members of the Guyana Police Force who had either committed crimes or had abandoned their police positions. Selwyn Vaughn had become a member of that group in 2005. Internecine conflict with other groups in Guyana led to the murder and torture of innocent people, and the following year Vaughn, who claimed that he grew tired of the violence, secretly became a paid informant for the United States law enforcement authorities. By early 2008, Vaughn was in the United States. He was instructed by members of Phantom Squad, who were still in Guyana, to contact Simels to assist in Khan's defense.
Upon receiving that instruction, Vaughn went first to his agent-handlers at the DEA. He told them that in the past he had provided information to Khan about the whereabouts of people who were later threatened or murdered by Khan's paramilitary organization at Khan's direction. Based on the request to contact Simels and his prior experience with Khan, Vaughn told the agents that he believed both Khan and Simels wanted his help to intimidate David Clarke and possibly other witnesses against Khan. The agents, who had previously been informed that Simels had lied to a prison official in order to get a visit with Clarke, decided to use their informant to record his conversations with Simels.*fn7
Vaughn contacted Simels by telephone and arranged to meet with him on May 13, 2008. During the meeting, Simels gave Vaughn some background on Khan's case. He explained that David Clarke was the government's "principal witness" against Khan. Gov't Ex. 401T3 at 9. As Simels put it, the government's "whole case was based on [Clarke]." Id.
Simels asked Vaughn whether he would be willing to testify in Khan's case. Vaughn responded that he wanted to speak to Khan before he gave an answer. Upon the suggestion that Vaughn would visit Khan in prison, Irvingstated that Khan was allowed only one person on the visiting list other than family. When Vaughnstated that he might pass as a family member, Irving repeated "I think he's only allowed one friend." Id. at 29.
During the meeting, Vaughn described himself as an "entrepreneur," id. at 30, suggesting that he was involved in criminal activity. Shortly thereafter, Simels stated that "if you are gonna testify, we gotta say that you have some sort of job alright, whatever that may be, laborer or, or anything." Id. at 31. Vaughn also described his relationship with Khan, whom he referred to as his boss. Id. at 11. Simels later stated "So I know earlier you said that, that Roger, you described him as the boss, um, but we certainly would not want to describe him as being a drug dealer . We certainly don't want to describe him as the boss." Id. at 36.
At the end of the meeting, Vaughn offered to help with Khan's defense. He stated, "Well, finding people was my specialty, so if there is anything I can do to help, I'm here . That is why he wanted me to talk to you in any case, I'm sure." Id. at 50. Simels stated that he would send Vaughn a list of "who we may be looking for and where we think that they are living." Id. at 51. Vaughn repeated that finding people was his specialty, after which Simels joked that Vaughn's nickname should actually be "Findman" rather than "Fineman." At no time during this initial meeting did Vaughn discuss any of the violent acts he or others had committed in Guyana. Irving spoke only briefly during the meeting.
Irving's memorandum about the interview contained the following information:
* [Vaughn] would get sources within the village and speak directly with Rawlings, Allison, etc. . to find out information for [Khan].*fn8
* [Vaughn] wants to try and visit [Khan] (NOTE: Check with [Khan] about visit capabilities).
* [Vaughn] said he can help locate people in the US. Gov't Ex. 501.
D. The May 15, 2008 Email From Simels to Vaughn
On May 15, 2008, following their initial meeting, Simels sent Vaughn an email, copying Irving. The email stated: "People we are looking for in NY are Leslyn Camacho, Clarke's girlfriend, and Farah Singh, used to work in the Tick Tavern on Rockaway, a hang out for Dave and Alicia.*fn9 Obviously we are still looking for Alicia. I can have Arienne send you whatever details we have on these individuals." Gov't Ex. 200,Vaughn Testim. at 370.
E. The May 19, 2008 Memorandum (Irving's Visit with Khan)
Irving met with Khan at the MCC on May 19, 2008. In her memorandum about the meeting, Irving wrote:
* [Khan] still thinks there is an admissibility issue on the Persaud tapes. He said the key tapes are the "Son"*fn10 calls b/c if he testifies, then the tapes can get in.
* [Khan] said he is not worried about the other witnesses, but Son, since we don't know anything about him and he doesn't remember meeting him.
* [Khan] said Son was involved in late 2003, and during that time Roger was working on getting the Timber company, and he would NEVER talk about drugs inside wood b/c "he wouldn't shit where he eats."
F. The May 20, 2008 Memorandum (Irving's Visit with Khan)
Irving met with Khan again on May 20, 2008. In her memorandum about the meeting, she wrote: "[Khan] said why doesn't [Vaughn] try and go see David Clarke in Queens facility, since they know each other." Gov't Ex. 808. Earlier in the memorandum, Irving also wrote:
* [Khan] wants [Simels] to tell Kevin (Ledge) to find Son's brother in [Georgetown, Guyana], so [Simels] can meet him, or we can get his brother to call Son and see if Son will speak with [Simels]. ([Khan] said to see what [Simels] says about that b/c if Son tells Government that Ledge contacted him or his brother said Ledge told him to speak with [Khan's] lawyer then it may not be good as it will connect [Khan] and Ledge).
G. The May 20, 2008 Email From Irving to Vaughn
On May 20, 2008 Irving emailed Vaughn to let him know that she had met with Khan and had brought back a letter from Khan telling Vaughn that he should trust Simels and Irving because they were his lawyers. She added, "Also, I am working on the visit," presumably referring to the prospect of Vaughn visiting Khan in the MCC, which was discussed on May 13. Gov't Exs. 203 & 809.
H. The May 23, 2008 Letter from the Prosecutors in Khan to his Counsel On May 23, 2008, the prosecutors responsible for prosecuting the Khan case faxed a letter to Simels's co-counsel, Diarmuid White, which he then sent to Simels. The prosecutors inquired about the conversations Khan recorded in Guyana, which Khan's defense team had indicated it may seek to introduce at his trial. Specifically, the prosecutors asked for a description of "how each of the recordings were made, including the equipment used. In addition, the government requests that a computer expert inspect the original recordings at a mutually convenient time." Def. Ex. 308-C.
I. The June 11, 2008 Meeting (Vaughn Visits Simels)
Simels and Vaughn met a second time at Simels's offices on June 11, 2008.
Irving did not attend this meeting. She was on jury duty in New York State court. Accordingly, other than the phone call made to Irving during the meeting, which is described below, she had no participation in the meeting.
Simels and Vaughn discussed George Allison, another potential witness against Khan. Simels told Vaughn that they did not know where Allison was, but that Khan wanted Vaughn to see if he could find Allison or his family and see "if he'll talk to us." Gov't Ex. 401T10 at 6. Simels and Vaughn also discussed another prospective witness, Alicia Jagnarain. Simels stated that "I'm prepared to handle her in my cross-examination . I'm hoping she won't be a major factor in the case after we're finished with her." Id. at 7.
Simels and Vaughn discussed Clarke as well. Simels said, "So Clarke is the guy we need to nail. Now either we need to have him desire not to testify, which is unlikely. He's made whatever deal he's made. He's gonna get a visa to stay here permanently, I believe. I don't know whether if they [sic] boys down there will be able to get me his wife, not be able to get me his wife to talk to me." Id. Simels stated that Khan needed to get Clarke not to testify or for the defense team to know everything about him. He said they were trying to find Clarke's girlfriend, Camacho, and that he would try to get Vaughn details on where she was living by putting Vaughn in touch with Simels's investigator.
Later in the conversation, Vaughn suggested influencing Clarke by appealing to his natural concern for her mother: "One thing I've learned is that a man, whether he's a criminal, he's a preacher, he always values his mother, because if you're not certain with anyone else to be at your side, your mother very likely will be there. You don't want anything to happen to her." Id. at 13. After some additional discussion of Leslyn Camacho, Simels said, "we want to get to Clarke. I think their whole case falls apart if Clarke is either neutralized by us, or neutralized by us by cross-examination." Id. at 14. A few minutes later, after Simels said "[t]here is money that is available" to help Clarke "resolve these issues," Vaughn suggested that if they arranged for Clarke to be spoken to by his relatives, Clarke "can probably suddenly just get amnesia." Id. Simels responded, "That's a terrible thing, but if it happens, it happens." Id. at 21.
Toward the end of the meeting, Simels called Irving to ask her where he could find Leslyn Camacho's address. Irving directed him to a computer file for the address, and Simels then explained that he needed the information because he was in a meeting with Vaughn.
At the end of the meeting, Vaughn said Khan would have to provide him an expense allowance. Vaughn explained that he would have to "scale down my business operations" in order to prepare for Khan's October 2008 trial, and he would need money to pay for unregistered pre-paid cell phones that could be thrown away. Id. at 36. Simels stated that he understood, and that he would get Khan the message by sending Irving down to the MCC to see him.
J. The June 13, 2008 Memorandum (Irving's Visit with Khan)
On June 13, 2008, Irving again met with Khan at the MCC. Simels was not present. Afterward, Irving drafted a memorandum summarizing the meeting. It contained the following relevant bullet points:
* [Khan] told [Simels] to use his discretion in giving money to [Vaughn] for his investigation. He said start with $1000 and see if he gets some results and then [Simels] can decide if he wants to give more.
* [Khan] said to make sure to tell [Vaughn] to not do anything stupid in terms of Clarke's mother, and that he will leave it to [Simels] to decide if someone should go speak to her.
He leaves it to [Simels's] legal opinion about any ramifications.
* [Khan] said he wants to wait until the Judge rules on the 404b motion before writing down what [Vaughn] should testify too [sic], as we may not need everything if the judge doesn't let it in.
* [Khan] says that the questions he is most worried about on cross for the [Georgetown] witnesses, is the government saying, 'do you know Ricardo?' [Khan] says the witnesses responses shouldn't be to deny it, but instead should yes of course I do, as part of our "intelligence gathering."
K. The June 17, 2008 Telephone Call From Vaughn to Irving
On June 17, 2008, Vaughn called Simels's offices and asked to speak with Simels. He was told Simels was in Guyana. The transcript reads in part:
VAUGHN: Selwyn. Actually, um I received an email from Mr. Simels. I'm calling to find out when he might be back so I can hook up to see him.
Unidentified Female: Um. Do you want to talk to Arienne?
VAUGHN: No, not necessarily. I don't have to talk to her. If you can just give me an idea if he is going to be back tomorrow, whenever, so I can call him you know? * * * * * Unidentified Female: Ok, um, wait hold on one second ok . She wants to talk to you ok?
VAUGHN: Alright, no problem, let me talk to her. * * * * *
IRVING: Hi. It's Arienne. I met you before.
VAUGHN: Yeah, it's Fineman here.
IRVING: Yeah, how you ...